Judicial split

Published: Tuesday, December 31, 2013 at 08:00 AM.

Round two of the legal battles surrounding the federal government’s mass collection of Americans’ phone records goes to the pro-security side — and further ensures the constitutional issues involved will be adjudicated by the Supreme Court.

The sooner the better.

A week after a district court judge in Washington issued a preliminary injunction against the National Security Agency’s program of vacuuming up everyone’s phone data, saying it likely violates the Fourth Amendment, a federal judge in New York found the same program constitutional. Both cases turned on the jurists’ interpretation of a 1979 Supreme Court case, Smith v. Maryland, and each came to opposite conclusions.

In Smith, the court declared that law enforcement did not violate the Fourth Amendment when it collected phone data on a criminal suspect because he “voluntarily conveyed numerical information to the telephone company.” In short, because the places he calls are records that belong to the phone company, the caller has no expectation of privacy. Therefore data is not protected against unreasonable search. This is called the “third party doctrine.”

That, however, is a narrow use of such data compared to the NSA’s current practice of collecting phone information on virtually every American, without probable cause, to sift through for potential clues as to terrorist activity. In issuing a preliminary injunction against the NSA, D.C. District Judge Richard Leon opined that modern cell phone technology has changed the nature of communications and made Smith an anachronism, like applying horse-and-buggy road rules to a society of automobiles. There is far more personal information communicated today than when disco was king, and thus more opportunity for the government to go snooping through people’s lives.

New York District Judge William Pauley last Friday saw it differently. Although he acknowledged that a government data-mining program “if unchecked, imperils the civil liberties of every citizen,” Smith remains the controlling opinion — “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” There is no difference between one phone number and 100 million.

Interestingly, both judges viewed the effectiveness of the NSA program differently. Leon said he found no evidence the phone metadata had succeeded in identifying a terrorist threat. Pauley wrote that “the effectiveness of bulk telephony metadata collection cannot be seriously disputed.” But the examples he gives have been disputed as having proved anything of the sort. They speculate about what-ifs, but don’t provide a direct connection between mass collection of phone records and pinpointing bad guys.

Round two of the legal battles surrounding the federal government’s mass collection of Americans’ phone records goes to the pro-security side — and further ensures the constitutional issues involved will be adjudicated by the Supreme Court.

The sooner the better.

A week after a district court judge in Washington issued a preliminary injunction against the National Security Agency’s program of vacuuming up everyone’s phone data, saying it likely violates the Fourth Amendment, a federal judge in New York found the same program constitutional. Both cases turned on the jurists’ interpretation of a 1979 Supreme Court case, Smith v. Maryland, and each came to opposite conclusions.

In Smith, the court declared that law enforcement did not violate the Fourth Amendment when it collected phone data on a criminal suspect because he “voluntarily conveyed numerical information to the telephone company.” In short, because the places he calls are records that belong to the phone company, the caller has no expectation of privacy. Therefore data is not protected against unreasonable search. This is called the “third party doctrine.”

That, however, is a narrow use of such data compared to the NSA’s current practice of collecting phone information on virtually every American, without probable cause, to sift through for potential clues as to terrorist activity. In issuing a preliminary injunction against the NSA, D.C. District Judge Richard Leon opined that modern cell phone technology has changed the nature of communications and made Smith an anachronism, like applying horse-and-buggy road rules to a society of automobiles. There is far more personal information communicated today than when disco was king, and thus more opportunity for the government to go snooping through people’s lives.

New York District Judge William Pauley last Friday saw it differently. Although he acknowledged that a government data-mining program “if unchecked, imperils the civil liberties of every citizen,” Smith remains the controlling opinion — “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” There is no difference between one phone number and 100 million.

Interestingly, both judges viewed the effectiveness of the NSA program differently. Leon said he found no evidence the phone metadata had succeeded in identifying a terrorist threat. Pauley wrote that “the effectiveness of bulk telephony metadata collection cannot be seriously disputed.” But the examples he gives have been disputed as having proved anything of the sort. They speculate about what-ifs, but don’t provide a direct connection between mass collection of phone records and pinpointing bad guys.

For now, the program’s success is immaterial to its constitutionality. A bad government program still can be legal; conversely, just because something works doesn’t (or shouldn’t) make it legal.

Pauley’s argument has merit, and is judicially conservative — Smith is the law until the Supreme Court says otherwise. That’s why it is imperative that the court take up this issue quickly, so it can then consider Leon’s valid contention about the changing nature of privacy. The idea that advances in personal technology erode individual liberty and enhance state power is disturbing. Machinery should not be gateways to weakening our natural rights.